Category Archives: Florida Bar 2016 Lawyer referral rule revisions

Florida Supreme Court rejects any Bar rule prohibiting lawyers from belonging to private services which refer to both lawyers and doctors

Hello everyone and welcome to this Ethics Alert which will discuss the recent Florida Supreme Court Opinion which rejected any Bar rule prohibiting lawyers from belonging to private services which refer to lawyers and doctors. The case is In Re: Amendments to Rule Regulating The Florida Bar 4-7.22, Case No SC18-881.  The April 15, 2019 opinion is here: https://efactssc-public.flcourts.org/casedocuments/2018/881/2018-881_disposition_145774_d25.pdf

A majority of the Florida Supreme Court (with Justice LaBarga dissenting) rejected any Bar rule that would have prohibited lawyers from belonging to services that refer callers for legal and other services stemming from the same incident.  In 2018, the Court issued an opinion implementing the Bar’s proposed qualifying provider rules and directed the Bar to draft and submit an additional rule prohibiting lawyers from using qualifying providers offering legal and other services stemming from the same event.

The April 15, 2019 opinion stated that, when the Court recommended a revision of Florida Bar Rule 4-7.22 last March, a majority of those justices wanted to further expand the rule to prohibit attorneys from belonging to referral services (now called qualifying providers) which refer callers for both legal and nonlegal services needed from the same event.  Those legal services are typically related to accidents or injuries where the callers need both medical and legal help.

The opinion referred to Justice Lawson’s partial dissent in the 2018 opinion and dismissed the case.  In his partial dissent in that case, Justice Lawson wrote that he disagreed with the majority only on requiring the Bar to submit a new rule banning lawyers from belonging to entities that also referred callers to other professional services emanating from the same incident. He noted the Special Committee on Lawyer Referral Services initially made that proposal in 2012. The Board of Governors considered that recommendation but instead voted that making certain disclosures to the client was sufficient.

In his partial dissent from the April 15, 2019 opinion, Justice Labarga noted that, in the 2018 opinion, “(the Court) comprehensively amended rule 4-7.22 to establish a single regulatory scheme under which lawyer participation in services that connect prospective clients to lawyers, such as matching services, are subject to the same restrictions as lawyer referral services, legal directories, and other similar services regulated by The Florida Bar.”

“Nevertheless, we expressed continued concern with respect to how certain lawyer referral services operate in Florida, particularly those that refer prospective clients to other professionals and occupational disciplines for services arising out of the same incident or transaction. I concurred in the conclusion that additional measures were needed to safeguard against potential harm…in my view, the amendments the majority rejects today are critical to ensure all services that connect prospective clients to lawyers first and foremost operate in a manner that protects and furthers the public interest.”

The dismissal of the pending case ends a multiple year review of the Bar’s lawyer referral service rules, which began when the Special Committee on Lawyer Referral Services of the Florida Bar’s Board of Governors (BOG) submitted a report in 2012.  That report recommended stricter regulation of for-profit referral services and participating lawyers and among its recommendation was a prohibition of lawyers belonging to services that also referred callers to nonlegal services stemming from the same incident.

The BOG rejected the recommendation that lawyers be prohibited from lawyers belonging to services that also referred callers to nonlegal services stemming from the same incident stating that disclosures to the client were sufficient along with a requirement that the lawyer making such a referral must believe it is in the client’s best interest.

The Bar submitted those proposed revised rules to the Court in 2014.  The Court rejected those amendments and directed the Bar to submit a rule that required that all for-profit referral services be owned or managed by a Bar member and that lawyers could not belong to services that also referred callers for nonlegal work resulting from the same incident.

The BOG committee then redrafted the previously proposed rules and defined any company or service that links a lawyer and potential client as a “qualifying provider” when the participating lawyers are subject to Bar rules; however, the BOG rejected the proposed requirement that a Bar member own or manage a for-profit service or a prohibition on lawyers belonging to qualified providers that refer to others. Those revised proposed rule revisions were submitted to the court in 2016 and oral arguments were held in 2017.  Some justices closely questioned the Bar representative about the Bar’s failure to follow its earlier instructions.

Bottom line:  The issue of whether lawyers can participate with for profit services which refer to both lawyers and medical providers has been settled…for now.  Lawyers can continue to participate in such services and those services do not have to be owned solely by lawyers.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Florida Bar Board of Governors approves Ethics Opinion addressing lawyer fee arrangements with qualifying providers

Hello everyone and welcome to this Ethics Alert which will discuss the Florida Bar Board of Governor’s (BOG) unanimous approval of Ethics Advisory Opinion 18-1 addressing fee arrangements between qualifying providers and participating lawyers to comply with amended Florida Bar Rule 4-7.22, which substantially revises the requirements for qualifying providers.  Ethics Opinion 18-1 is here: https://www-media.floridabar.org/uploads/2018/10/Proposed-Advisory-Op-18-1-website-10-12-18.pdf

At its December 14, 2018 meeting in Naples, the BOG approved Advisory Ethics Opinion 18-1, “Payments to Qualifying Providers/Lawyer Referral Services.” regarding for-profit qualifying providers, previously known as lawyer referral services, and related payment methods.  The BOG approved the Ethics Opinion unanimously without debate.

Under amended Bar Rule 4-7.22, which became effective in April 2018, a qualifying provider is, “any person, group, or persons, associations, organizations, or entities that receive any benefit or consideration, monetary or otherwise, for the direct or indirect referral of respective clients to the lawyers or law firm.”

The Comment to Rule 4-7.22 states:

“A lawyer may not participate with a qualifying provider that receives any legal fee that constitutes a division of legal fees with a non-lawyer unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service approved by The Florida Bar pursuant to Chapter 8 of these rules,” the comment states. “A fee calculated as a percentage of the fee received by a lawyer, or based on the success or perceived value of the case, would be an improper division of legal fees…(a)dditionally, a fee that constitutes an improper division of fees occurs when the qualifying provider directs, regulates, or influences the lawyer’s professional judgement in rendering legal services to the client.”

Ethics Advisory Opinion 18-1 lists the following factors which “mitigate in favor of a conclusion that the charge is permissible”:

  1. The charge is reasonably based on the qualifying provider’s costs for marketing and administration plus a reasonable profit; and
  2. the charge is imposed regardless of whether the lawyer is hired by the prospective client.

The opinion lists the following factors which would “mitigate in favor of a conclusion that the charge is impermissible”:

  1. The charge is based on the perceived value of the individual matter.
  2. The qualifying provider collects the lawyers’ fees directly from the consumer, takes a portion of the fee as the charge for the referral or match, then remits the remainder to the lawyer.
  3. The qualifying provider interferes with the lawyer’s independent professional judgment in representing clients or directs the lawyer’s activities in representing clients.
  4. There is sufficient incentive for the qualifying provider to improperly solicit prospective clients or improperly market the service.

The opinion states that: “the board believes the following would be permissible:”

  1. A reasonable, pre-arranged fixed charge per time period such as weekly, monthly, or yearly;
  2. A reasonable, pre-arranged fixed charge for each time a consumer views information about a specific lawyer, commonly referred to as “pay-per-click.”
  3. A reasonable, pre-arranged fixed charge per matter referred to the lawyer that is not contingent on the outcome of the matter and does not vary based on the amount at issue in the matter.
  4. A reasonable, pre-arranged fixed charge per matter referred to the lawyer that varies based on the type of matter only if the varying charge is based on demonstrably different marketing and administrative costs rather than the perceived value of the case.

The opinion states that: “the board believes the following would generally be impermissible”:

  1. A charge calculated as a percentage of the fee received by a lawyer.
  2. A charge calculated as a percentage of the client’s recovery in the matter.
  3. A charge based on the perceived value of the case referred to or accepted by a participating lawyer.
  4. A flat charge that differs based on the perceived value of the case referred to or accepted by a participating lawyer.
  5. A flat charge per case accepted by a participating lawyer.
  6. A flat charge per case accepted by a participating lawyer that differs based on the type of matter (e.g., personal injury versus family law).

The opinion states that it is designed solely to address what constitutes impermissible fee splitting, and that lawyers should not “assume that a lawyer may participate with a particular qualifying provider solely because the qualifying provider’s method of charging for its services falls within one of the methods the board concludes generally would be found to be permissible.”

Bottom line:  The Ethics Opinion identifies various fee arrangements between lawyers and qualifying providers which may or may not comply with the new rule.  Any lawyers who participate in (or are considering participating in) referrals from a private entity should carefully review this ethics opinion and the amended rule, since lawyers can be disciplined if the referral service (qualifying provider) fails to comply with the Florida Bar rules.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Florida Supreme Court adopts substantial revisions to Bar rules related to private lawyer referral services

Hello everyone and welcome to this Ethics Alert Update which will discuss the recent (March 8, 2018) Florida Supreme Court opinion approving amendments to Florida Bar Rule 4-7.22 related to private and for profit lawyer referrals.  The amendments substantially revise the current rule, including the broadening definitions, changing the name of the referral companies to “matching services” and “qualifying providers”, prohibiting fee splitting, and removing the previously required disclaimer that the entity is a lawyer referral service.  The Court’s opinion is here: http://www.floridasupremecourt.org/decisions/2018/sc16-1470.pdf  The rule amendments are effective April 30, 2018, at 12:01 a.m.

Amended Rule 4-7.22 specifically prohibits fee splitting between the referral entities and lawyers and prohibits deceptive, misleading, or false advertising by those entities.  Also, any private entities that connect consumers looking for legal services with lawyers will be called “qualifying providers” regardless of whether they are a “traditional” referral service (ASK-GARY, 411 PAIN) or a technology-based provider (AVVO, LegalZoom).

The Court rejected the Bar’s proposed referral rule amendments in 2015 stating that private referral service entities should only be owned by lawyers.  The Bar filed revised rules in 2016 and the Court issued an Order on May 3, 2017 rejecting the proposed rule revisions and dismissing the Bar’s Rules Petition without prejudice.  That Order stated that the revised rules failed to comply with the Court’s directive that lawyer referral services should be owned or operated only by a member of the Bar and sought to expand the scope of the rule to include “matching services” and other similar services not currently regulated by the Bar.

In its March 8, 2018 opinion, the Court implemented the Bar’s proposed rule amendments but stated that “(the amendments do not) resolve our concern with how some lawyer referral services operate in Florida, especially those that refer clients to other professionals and occupational disciplines for services arising from the same incident. The findings of the Special Committee (on Lawyer Referral Services) on this matter are troubling and we continue to believe additional measures are needed to ensure the public is not exposed to harm. We therefore direct the Bar to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee’s first recommendation.”

Bottom line:  The Florida Supreme Court has adopted the Bar’s revised referral rule, which will substantially change the current rule; however, the Court has indicated that it continues to believe that services which are owned by non-lawyers and make referrals of both lawyers and other professionals should be prohibited and directed the Bar “to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee (on Lawyer Referral Service)’s first recommendation.”

Lawyers who participates in referrals from a private entity (or is considering doing so), should carefully review the new rules, since the rule requires a lawyer who participates to insure that the private entity is in full compliance with the Bar rule.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Potential Florida Bar ethics advisory opinion 17-2 will address lawyer referral fees and private client matching services

Hello everyone and welcome to this Ethics Alert which will discuss recent decision by the Florida Bar’s Board of Governors (BOG) to consider a potential ethics advisory opinion to address the ethics issues surrounding lawyer referral fees and private client matching services.  The advisory opinion has not been drafted; however, the draft opinion will be identified as Proposed Advisory Opinion 17-2.

The Bar review began after a lawyer sent an ethics inquiry to The Florida Bar asking whether lawyers could participate with a private lawyer referral service which planned to charge a different set fee depending upon the type of case referred.  The lawyer referred to the system “as a ‘pay-per-lead’ structure.”

The lawyer’s inquiry was referred to the BOG and, at its July 21, 2017 meeting in Miami, the BOG unanimously approved the recommendation of the Board Review Committee on Professional Ethics (BRCPE) that it be directed to prepare an advisory opinion on the inquiry, specifically whether lawyer referral services can charge a fee per referral and impose different fees for different types of cases.  The BRCPE has authority to decline drafting an opinion and the BOG could also decide not to issue the opinion if it is drafted.

If an ethics advisory opinion is drafted, it will address the ethics issues created when online entities (such as AVVO) rolled out programs which attempt to match potential clients with lawyers and which make different payments depending on the type of case.  The opinion would also address the Bar rules related to advertising and referral services.  Lawyers and others will be able to comment on the issues before any opinion is drafted and/or approved.

The Florida Bar Rules have long prohibited lawyers from sharing fees with private referral services.  The Bar’s Standing Committee on Advertising (SCA) also rejected “pay-per-lead” plans on previous appeals and the BOG rejected an appeal from a referral service that proposed a payment of $300.00 to participating lawyers for each referred and accepted case in 2012.

Other jurisdictions have published ethics opinions addressing these issues or are in the process of reviewing them.  As I reported in a recent Ethics Alert blog, New York Ethics Opinion 1132 (published August 8, 2017) found that New York lawyers are prohibited from participating in AVVO’s client referral services.  The opinion found that lawyers who participate in AVVO’s client referral services (and any similar services) would violate the New York Bar rules since they involve AVVO’s improper “vouching” for (recommendation of) the lawyer, improper lawyer referral fees, and improper fee sharing with a non-lawyer.

As background, The Florida Bar filed a petition with proposed Bar rule amendments with the Florida Supreme Court in 2015 addressing, inter alia, referral services that offer both legal and medical or other non-legal services. Those proposed rules would have allowed lawyers to participate in those services, as long as clients were informed about potential conflicts, there was no quid pro quo requiring the lawyer to send a referred client for medical or other services offered by the referral agency, and the lawyer’s independent judgment was not affected.

The Florida Supreme Court published an opinion on September 24, 2015 which declined to implement the rule revisions and instructed the Bar to draft rules that “preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.”    That opinion is here: 9/24/15 SC Opinion

The Florida Bar then filed revised rule amendments designating private entities which match lawyers with potential clients as “qualified providers” and requiring those entities to comply with the Bar rules, including a required review of the advertisements. Participating lawyers would not have been required to carry malpractice insurance.

The Florida Supreme Court heard oral argument in April 2017 and then published an order dismissing the petition on May 3, 2017. That order is here: 5/3/17 SC Order.  The order stated: “In this case, the Bar proposes amendments to rule 4-7.22 that do not comply with the Court’s direction concerning lawyer referral services that are not owned or operated by a member of the Bar and that seek to expand the scope of the rule to include “matching services” and other similar services not currently regulated by the Bar.

The May 3, 2017 Order also stated that the dismissal was without prejudice “to allow the members of this Court to engage in informed discussions with the Bar and those who are in favor or against the proposed regulation of matching and other similar services. The Court lacks sufficient background information on such services and their regulation at this time.”  A meeting was held at the June 2017 Bar Annual Convention in Boca Raton to discuss the issues and was attended by Justices, Bar officials, and representatives of private referral services.

The Bar’s Notice of the proposed ethics advisory opinion was published in the August 15, 2017 issue of the Florida Bar News.  The Bar’s Notice is here: 8/15/17 Notice of Proposed advisory opinion 17-2.

According to the Notice:  “The Board Review Committee on Professional Ethics will consider adopting a proposed advisory opinion at the direction of The Florida Bar Board of Governors based on an inquiry by a member of The Florida Bar, at a meeting to be held on Thursday, December 7, 2017, from 1-3 p.m. at the Ritz-Carlton on Amelia Island.” and “comments from Florida Bar members are solicited on the issues presented. Comments must contain Proposed Advisory Opinion number 17-2, must clearly state the issues for the committee to consider, may offer suggestions for additional fee arrangements to be addressed by the proposed advisory opinion, and may include a proposed conclusion. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than 30 days from the date of this publication.”

Bottom line:  If the ethics opinion is drafted and approved, Florida will join the growing list of jurisdictions addressing “marketing fees” taken from fees paid by private online entities to lawyers participating in client generation services.  This ethics opinion (like all ethics opinions) would be advisory and for guidance only.

Stay tuned and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Florida Supreme Court dismisses Florida Bar’s petition proposing substantial revisions to lawyer referral service rules

Hello everyone and welcome to this Ethics Alert Update which will update my August 1, 2016 Ethics Alert and will discuss the recent Florida Supreme Court Order (May 3, 2017) dismissing the Bar’s petition for approval of the proposed substantial revisions to the Bar Rules related to lawyer referral services.

The proposed rules would have substantially revised the current rules, changed the name of the referral companies to “matching services” and “qualifying providers”, specifically prohibited fee splitting and deleted the disclaimer that the entity is a lawyer referral service.  The proposed rules would not have limited ownership to lawyers only or referrals to lawyers only.

The case is: In Re: Amendments to the Rules Regulating The Florida Bar-Subchapter 4-7 (Lawyer Referral Services, Case No.: SC16-1470 and the Supreme Court’s Order May 3, 2017 is here:  https://efactssc-public.flcourts.org/casedocuments/2016/1470/2016-1470_disposition_138549.pdf

Under the proposed amendments, which were approved by the Florida Bar Board of Governors in 2016, any private entities that connect consumers looking for legal services with lawyers would have been called “qualifying providers” regardless of whether they were “traditional” referral services (such as ASK-GARY or 411 PAIN) or a technology-based provider (such as AVVO or LegalZoom).

The Florida Bar’s website has a page summarizing the proposed rule revisions as well as a frequently asked questions section and comparison chart.  The link to that page is here:  http://www.floridabar.org/proposedlrsamend#Overview.

The May 3, 2017 Florida Supreme Court Order states:

Previously, in In re Amend. to Rule Reg. The Fla. Bar 4-7.22—Lawyer Referral Services, 175 So. 3d 779, 781 (Fla. 2015), the Court rejected amendments to Rule Regulating the Florida Bar 4-7.22 proposed by The Florida Bar and directed the Bar to propose amendments that “preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.” In this case, the Bar proposes amendments to rule 4-7.22 that do not comply with the Court’s direction concerning lawyer referral services that are not owned or operated by a member of the Bar and that seek to expand the scope of the rule to include “matching services” and other similar services not currently regulated by the Bar. (emphasis supplied).

The Court having considered the Bar’s prior petition, the amendments proposed in this case, the comments filed, the Bar’s response, and having had the benefit of oral argument, the Bar’s petition in this case is hereby dismissed without prejudice to allow the members of this Court to engage in informed discussions with the Bar and those who are in favor or against the proposed regulation of matching and other similar services. The Court lacks sufficient background information on such services and their regulation at this time.

No rehearing will be entertained by this Court.

Bottom line:  As I previously stated, if approved by the Florida Supreme Court, the proposed revisions would have substantially altered the rules for lawyer referral services; however, the proposed rules would not have limited ownership to lawyers nor referrals only to lawyers.  This Order makes it clear that the that the proposed rules “do not comply with the Court’s direction concerning lawyer referral services that are not owned or operated by a member of the Bar and that seek to expand the scope of the rule to include ‘matching services’ and other similar services not currently regulated by the Bar.”

The Florida Bar will now ponder the language of the Supreme Court’s Order in considering potential future proposed lawyer referral rule revisions.  Stay tuned…

…and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Florida Bar’s Board of Governors approves substantial revisions to Bar rules related to lawyer referral services

Hello everyone and welcome to this Ethics Alert Update which will discuss the Florida Bar Board of Governors’ (BOG) recent approval of proposed lawyer referral rules.  The proposed rules would substantially revise the current rules, including broadening the definition and changing the name of the services to “matching services” and the names of referral companies to “qualifying providers”, prohibiting fee splitting, and deleting the disclaimer that the entity is a lawyer referral service.  The proposed rule revisions are here:  http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/D8FFF4171E28E5C085257FA300648D6B/$FILE/4-7.22%20et%20al%20legislative.pdf?OpenElement

The BOG met on Friday, July 29, 2016 in Miami Beach and approved the proposed revisions.  If approved by the Florida Supreme Court, are designed to prevent fee splitting between those companies and lawyers and protect the public from deceptive, misleading, or false advertising by those companies.  Under the proposed amendments, any private entities that connect consumers looking for legal services with lawyers are called “qualifying providers” regardless of whether they are a “traditional” referral service (ASK-GARY, 411 PAIN) or a technology-based provider (AVVO, LegalZoom).

On May 20, 2016, the BOG reviewed a report from the chair of the Board Review Committee on Professional Ethics and scheduled a final vote for the July meeting.  That committee had been working on the revised rules with the BOG’s Technology Committee since 2015 after the Florida Supreme Court rejected the Bar’s proposed rule referral rule amendments.  The Court stated that for profit referral service companies should only be owned by lawyers. The amendments will now be filed with the Supreme Court on August 15, 2016 and the Court must approve the proposed rules before they are implemented.

The Florida Bar’s website has a page summarizing the proposed revisions to the rules and also has a frequently asked questions section and comparison chart.  The link to the page is here:  http://www.floridabar.org/proposedlrsamend#Overview and the summary of the proposed rule changes is below.

Bottom line:  As I have said previously, if these proposed rules are approved by the Florida Supreme Court, they will substantially change the landscape for lawyer referral services (which would be called “qualifying providers”) and the requirements for providers and lawyers to participate in such “matching services”.   Although the Florida Supreme Court had strongly suggested that the referral entities should only refer to lawyers and only lawyers should own the services, the proposed rules do not limit ownership nor do they limit referrals only to lawyers.

If you have any comments, they must be filed directly with the Florida Supreme Court between August 15, 2016 and September 15, 2016.

Be careful out there.

OVERALL CHANGES TO RULE

Terminology

“Qualifying Provider” instead of “lawyer referral service”

Some states prohibit for-profit lawyer referral services

States that prohibit for-profit lawyer referral services define them differently than Florida – some on-line matching services are not considered referral services in some states

Broader definition of “qualifying provider” including:

Directories

On-line matching services

Group or pooled advertising programs

Tips or leads programs

REQUIREMENTS RETAINED

Ads for qualifying providers must comply with lawyer advertising rules

Lawyers may not divide fees with qualifying providers (except non-profit Florida Bar and voluntary bar lawyer referral services)

Qualifying providers must match consumers only to those authorized to provide the services in Florida

Qualifying providers must respond to official bar inquiries within 15 days

Qualifying providers may not state or imply bar endorsement (except non-profit Florida Bar and voluntary bar lawyer referral services)

Qualifying providers must use their actual names or a registered fictitious name

DELETED REQUIREMENTS

Malpractice insurance

Lawyer referral services and other qualifying providers find it difficult if not impossible to obtain malpractice insurance that covers lawyers who are in different firms

Most lawyers are not required by bar rules to carry malpractice insurance (currently only lawyers participating in either for-profit or Florida Bar or voluntary bar lawyer referral services or Florida bar-approved group or pre-paid legal insurance plans are required to carry malpractice insurance)

Disclaimer in all ads that it is a lawyer referral service

Some states prohibit for-profit lawyer referral services

States that prohibit for-profit lawyer referral services define them differently than Florida – some on-line matching services are not considered referral services in some states

Requiring the disclaimer creates problems in states where lawyer referral services are prohibited

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Disclaimer in all ads that lawyers pay to participate

It is obvious to most consumers that they are for-profit

Some qualifying providers do not charge lawyers to participate, but make money by selling advertising space or by charging consumers to participate

Requirement that all services provide The Florida Bar quarterly with names of all those authorized to act on behalf of the service

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Qualifying providers are required to respond to official bar inquiries, so if the bar needs the information, the bar can request it at that time

CHANGED REQUIREMENT

Report to the bar of the names of all participating lawyers changed from quarterly to annual

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Qualifying providers are required to respond to official bar inquiries, so if the bar needs the information, the bar can request it at that time

NEW REQUIREMENTS

Qualifying providers:

may not require or pressure the lawyer to provide cross referrals

must give participating lawyers documentation of compliance with bar rules

must disclose participating lawyers’ location by city, town or county when the referral is made

may not use a name or otherwise imply to the public that the qualifying provider is a law firm, can practice law or directly provide legal services

REQUIREMENTS CONSIDERED BUT NOT RECOMMENDED

Florida Supreme Court requested amendment that requires that lawyer referral services be owned or operated by a Florida Bar member

The BRC and Technology Committees discussed extensively and voted not to include the proposal

The Court already has regulatory authority over participating lawyers

Lawyers will become scapegoats for unscrupulous services

Services who are in compliance should not be penalized

Rules should be no more restrictive than is necessary to protect the public and ensure lawyer’s adherence to professional requirements

Defining ownership and operation is difficult and no parameters have been provided by the Court

FILING

Amendments will be considered for final action by The Florida Bar Board of Governors at its July 29, 2016 meeting in Miami Beach Comments may be sent to eto@floridabar.org – if filed with the bar by June 30, they will be provided to the board for its meeting

Petition to amend the rule will be filed with the Florida Supreme Court August 15, 2016

Comments may be filed directly with the Florida Supreme Court between August 15, 2016 and September 15, 2016

Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Please note:  Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

My main office number, (727) 799-1688, is temporarily unavailable due to a telephone company issue.  Please call (727) 286-6625 (my rollover number) if you need to contact me immediately.   Thank you.

 Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

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Filed under Attorney Ethics, Florida Bar, Florida Bar 2016 Lawyer referral rule revisions, Florida Bar lawyer referral rule revisions, Florida Bar matching services, Florida Lawyer advertising rules, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer ethics, Lawyer Ethics and Professionalism

Florida Bar’s Board of Governors will vote on substantial revisions to Bar rules related to lawyer referral services

Hello everyone and welcome to this Ethics Alert blog which will discuss the proposed revisions to the lawyer referral Bar rules which would change the names to “matching services” and “qualifying providers” and substantially revise the existing referral rules.  The proposed rule revisions are here:  http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/D8FFF4171E28E5C085257FA300648D6B/$FILE/4-7.22%20et%20al%20legislative.pdf?OpenElement

The proposed rules address for-profit companies that link lawyers with consumers needing legal work and are designed to prevent fee splitting between those companies and lawyers and protect the public from deceptive, misleading, or false advertising by those companies.  Under the proposed amendments, any private entities that connect consumers looking for legal services with lawyers are called “qualifying providers” regardless of whether they are a “traditional” referral service (ASK-GARY, 411 PAIN) or a technology-based provider (AVVO, LegalZoom).

The Florida Bar’s Board of Governors (BOG) received an updated report on May 20, 2016 from Carl Schwait, chair of the Board Review Committee on Professional Ethics.  That BOG committee was working on the rules with the BOG’s Technology Committee, chaired by board member John Stewart, since last year when the Florida Supreme Court rejected the Bar’s proposed rule amendments on for profit lawyer referral services.

The BOG is scheduled to vote on the proposed amendments at its July 29, 2016 meeting.  If approved, the amendments must be filed with the Supreme Court by August 15, 2016 and the Court must also approve and issue an Order implementing them.

The Florida Bar’s website has a page summarizing the proposed revisions to the rules and also has a frequently asked questions section and comparison chart.  The link to the page is here:  http://www.floridabar.org/proposedlrsamend#Overview and the summary of the proposed rule changes is below:

OVERALL CHANGES TO RULE

Terminology

“Qualifying Provider” instead of “lawyer referral service”

Some states prohibit for-profit lawyer referral services

States that prohibit for-profit lawyer referral services define them differently than Florida – some on-line matching services are not considered referral services in some states

Broader definition of “qualifying provider” including:

Directories

On-line matching services

Group or pooled advertising programs

Tips or leads programs

REQUIREMENTS RETAINED

Ads for qualifying providers must comply with lawyer advertising rules

Lawyers may not divide fees with qualifying providers (except non-profit Florida Bar and voluntary bar lawyer referral services)

Qualifying providers must match consumers only to those authorized to provide the services in Florida

Qualifying providers must respond to official bar inquiries within 15 days

Qualifying providers may not state or imply bar endorsement (except non-profit Florida Bar and voluntary bar lawyer referral services)

Qualifying providers must use their actual names or a registered fictitious name

DELETED REQUIREMENTS

Malpractice insurance

Lawyer referral services and other qualifying providers find it difficult if not impossible to obtain malpractice insurance that covers lawyers who are in different firms

Most lawyers are not required by bar rules to carry malpractice insurance (currently only lawyers participating in either for-profit or Florida Bar or voluntary bar lawyer referral services or Florida bar-approved group or pre-paid legal insurance plans are required to carry malpractice insurance)

Disclaimer in all ads that it is a lawyer referral service

Some states prohibit for-profit lawyer referral services

States that prohibit for-profit lawyer referral services define them differently than Florida – some on-line matching services are not considered referral services in some states

Requiring the disclaimer creates problems in states where lawyer referral services are prohibited

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Disclaimer in all ads that lawyers pay to participate

It is obvious to most consumers that they are for-profit

Some qualifying providers do not charge lawyers to participate, but make money by selling advertising space or by charging consumers to participate

Requirement that all services provide The Florida Bar quarterly with names of all those authorized to act on behalf of the service

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Qualifying providers are required to respond to official bar inquiries, so if the bar needs the information, the bar can request it at that time

CHANGED REQUIREMENT

Report to the bar of the names of all participating lawyers changed from quarterly to annual

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Qualifying providers are required to respond to official bar inquiries, so if the bar needs the information, the bar can request it at that time

NEW REQUIREMENTS

Qualifying providers:

may not require or pressure the lawyer to provide cross referrals

must give participating lawyers documentation of compliance with bar rules

must disclose participating lawyers’ location by city, town or county when the referral is made

may not use a name or otherwise imply to the public that the qualifying provider is a law firm, can practice law or directly provide legal services

REQUIREMENTS CONSIDERED BUT NOT RECOMMENDED 

Florida Supreme Court requested amendment that requires that lawyer referral services be owned or operated by a Florida Bar member

The BRC and Technology Committees discussed extensively and voted not to include the proposal

The Court already has regulatory authority over participating lawyers

Lawyers will become scapegoats for unscrupulous services

Services who are in compliance should not be penalized

Rules should be no more restrictive than is necessary to protect the public and ensure lawyer’s adherence to professional requirements

Defining ownership and operation is difficult and no parameters have been provided by the Court

FILING

Amendments will be considered for final action by The Florida Bar Board of Governors at its July 29, 2016 meeting in Miami Beach Comments may be sent to eto@floridabar.org – if filed with the bar by June 30, they will be provided to the board for its meeting

Petition to amend the rule will be filed with the Florida Supreme Court August 15, 2016

Comments may be filed directly with the Florida Supreme Court between August 15, 2016 and September 15, 2016

Bottom line:  If these rules are approved by the BOG (and the Florida Supreme Court), they will substantially change the landscape for lawyer referrals and the requirements for providers and lawyers to participate in “matching services”; however, although the Florida Supreme Court strongly suggested that only lawyers own the services, the rules do not limit ownership nor do they limit the referrals only to lawyers.

Be careful out there!

 Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Please note:  Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

My main office number, (727) 799-1688, is temporarily unavailable due to a telephone company issue.  Please call (727) 286-6625 (my rollover number) if you need to contact me immediately.   Thank you. 

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Filed under Attorney Ethics, Florida Bar, Florida Bar 2016 Lawyer referral rule revisions, Florida Bar lawyer referral rule revisions, Florida Bar matching services, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Referral Services